family law essay samples

family law essay samples

The Importance of Family Law in Society

1. Introduction

Family law has grown in the 1970s and 1980s to reflect the changing societal norms and values, the enforcement of the prenuptial agreement with the increase in the divorce rate of the middle class in the 1970s, the introduction of no-fault divorce laws, and the increased usage of post-dissolution of marriage support and custody awards. It has also been argued that the legal system appropriate for the cultural and societal ideals of the time would be too readily manipulated by those in power. The result of such manipulation has often been the oppression of less powerful groups, which include the poor, women, children, and non-English speaking persons. The change in the law is too often its result, and such changes have often been accomplished against a background of rampant and inexcusable discrimination. The law centered on the one breadwinner model, at a time when it was presumed that men represented the head of the family and women were lesser, often involving individuals with minimal education about their rights who lacked sufficient resources to effectively bring their matter before the court.

Family law is the body of law pertaining to marriage and matrimonial issues. Its main aim is to protect each member of a family, whether that family is nuclear, de facto, single parent, extended or blended, in a similar manner so that the quality of family life is maintained. This is most commonly done by the legal and physical relocation of the child in an unstable family environment. Usually, the family courts are located in every state to facilitate the administrative and quasi-judicial functions. In many countries, it is possible to obtain an annulment, an alternative to divorce, but one which establishes that the marriage never occurred. In other countries, an annulment is only allowed provided certain specific grounds are met, usually as a result of laws regarding the age of consent.

2. The Role of Family Law in Protecting Children’s Rights

The Family Law Act 1975 has also made an effort to lessen the emotional turmoil of children from a hostile parental relationship. This can be seen in the provision to rebut the presumption of an equal share of parental responsibility in S.61DA(2) and the introduction of no-fault divorce, which eradicated the need for children to involve in their parents’ divorcing process. Through the years, studies have shown the impact of a hostile parental relationship and separation towards the children. Although it was argued that the removal is detrimental to fathers, it is still beneficial for children who, up till now, are more often than not facing emotional neglect due to parents’ involvement in settling financial and property matters after divorce.

Children are the most valuable asset to the nation, and thus it is essential to protect their rights. That is the strong reason why family law plays its role in protecting children’s rights by being a specific discipline on its own, as provided by S.1(3) Family Law Act 1975, where the best interest has always been the utmost priority in defining children’s development and welfare. The judiciary will always consider in making judgment of what is the best interest of the children. However, the best interest itself is rather a vague expression. From this aspect, the statute has made an effort in narrowing the term down by providing the welfare checklist in S.3(1) FLA 1996. Further trends of what constitute the best interest can also be observed in landmark cases which provide some sort of guidelines to the public.

3. The Impact of Family Law on Divorce and Separation Proceedings

The Family Law Act 1996 stated that mediation processes should be readily considered when pursuing a divorce or separation. The process in theory was introduced before the act following White v White [2001], which encouraged alternative dispute resolutions. However, it was not until the Children and Families Act 2014 that made MIAM (Mediation Information and Assessment Meetings) a prerequisite to courthouse attendance. The main reason behind this is that a mediation process seeks to eliminate further stress and anxieties by avoiding court, which can exacerbate feelings and emotions at a very tough time for families. This is very beneficial in the case of separating families as it can determine future contact and living agreements.

Mediation and the tender years doctrine

Current English law aims to be fair for both parties and tries to provide a practical solution where possible. Before the Family Law Act 1996 came into place, divorce could only be attained under a scenario where a person had to prove the other party’s guilt. There were six grounds to prove: adultery, unreasonable behaviour, desertion, two years separation with mutual consent, five years separation without consent, and agreeing to a divorce and claiming to have done so after three years of being separated. This was the starting point of what has been a revolutionary way into the reformation of the divorce process. This will be examined further below.

Introduction

4. Ensuring Fairness and Equality in Family Law

Attempting to force the resolution of a family conflict by a determination of winners and losers is often a zero-sum game. Too often both the parties and the children lose, and bitterness and resentment can create ripples of further damage that may last indefinitely.

In the past, the primary focus of much of family law has been on the formal rights of the parties and, too often, the enforcement of those rights through the use of the court system. The prevailing myth is that there exists a well-defined set of rules and rights and that the use of adversarial systems will invariably resolve conflicts in a just manner. This is not true in family law, nor is it true for many other areas of law.

One of the most important developments in family law has been the increased emphasis on substantive justice and the means to achieve that goal. This is crucial because family law has an impact on the things that people value most: their homes, their children, their economic security, their very identities. When these things can be taken or diluted without the protection of law that is fair and just, society as a whole suffers, and its confidence in the legal system is undermined.

5. Conclusion: The Continued Need for Strong Family Law

It has been shown that the goals of family law have been to keep the state’s intervention at a minimum, and on the whole, this has been a reasonable approach. Especially more recently, there is evidence of a move in various states towards a more functional approach, if not a complete one, with a significant increase in state intervention. At the same time, it has been realized that not all problems arising in modern families can be solved by a legal approach and in some instances, the erosion of traditional values and the empowerment of women has worked against the institution of marriage and the family, such that it may be hard to create laws which can effectively be used.

In conclusion, we find that the state of family law today is in good health. Society is creating and recreating the family in many forms. Although this fluidity has resulted in certain complexities in defining the different types and stages of relationships, the law has generally kept pace. It has been argued that the most lasting and dramatic changes to the family have come as a result of various social movements, such as the civil rights movement and feminist movements. While, on one hand, the law has lagged behind these changes, on the other hand, in many ways it has served as an instrument of social change in and of itself.